The administration's given reasons are that the law is unnecessary, an intrusion on federalism, and constitutionally questionable as an exercise of federal power. I expressed similar reservations in a post here about the bill two months ago. To its credit, the administration is avoiding the common and I think mistaken complaint that the bill would punish speech and thought. Anti-gay organizations, like Concerned Women for America, will certainly be happy about this. But their glee is insufficient reason to support the bill.

Andrew Sullivan, who like me opposes hate crimes laws as a general matter, complains that Bush's veto of this bill represents a double-standard under which gays are just about the only commonly victimized group left out of the special protection federal law already provides. That might in fact be the sort of pandering to anti-gay bigotry that's going on here and, if so, the administration deserves to be criticized not for the veto but for the malign motive behind it.

The problem with this criticism, however, is that the bill does much more than simply add "sexual orientation" to the existing federal law on hate crimes passed in 1968. It's a whole new statute. Protecting gays is only one element, though the most publicized. The bill considerably expands federal jurisdiction over hate crimes in general, for all categories, by eliminating the current requirement that the crime occur while the victim is engaged in a federally protected activity. That jurisdictional limitation has kept federal involvement very limited in an area where state authority has traditionally reigned. The new law also calls for more federal resources to be expended on all classes of hate crimes. The veto of an amendment merely adding sexual orientation to existing federal law would pretty clearly reflect an anti-gay double-standard. A veto of this much more comprehensive bill does not.

To test this proposition, and to put gays on a par with other groups often targeted for hate crimes, Congress could simply amend the 1968 federal hate-crimes law to add protection for sexual orientation. Then we'll see what the President does.

As a Democrat, I'm not a fan of this bill. It strikes me as a liberal version of "tough on crime" legislation which is so often misguided.

We gradually move towards life sentences for every single crime because what legislator wants to face a campaign commercial saying that they voted against tougher sentences for rapists, murderers, what have you? By the same token, who wants to deal with commercials suggesting that they're racist, anti-gay, etc. because they opposed hate crimes legislation? And thus laws get passed, with little consideration of whether they're good public policy.

It's silly to say that Congress must pass a law that only expands the protected categories in the 1968 law, not fixes its "federally protected activity" requirement. Everyone who accepts the basic concept of a federal hate crimes law -- and admittedly, Dale, you may not be one of them -- agrees that the "federally protected activity" requirement is an unnecessarily restrictive approach to establishing federal jurisdiction in these case and a substantial barrier to the effective prosecution of these cases. So in any hate crimes bill that has a chance of passing, Congress is going to make this long-needed fix -- regardless of whether the protected categories are expanded or not.

Instead, you should compare the position the Administration has taken on this bill with its positions on other criminal laws involving related federalism concerns. Does the current Justice Department decline to prosecute carjacking offenses because it believes those crimes are properly handled by the states? What about drug offenses? Arson? What about pornography? Has this Administration raised the slightest concern about the federalism concerns implicated by the substantial expansion of anti-porn and anti-obsenity laws during the last six years?

I'd be interested in your view of what distinguishes the Administration's approaches on these issues, if not anti-gay bigotry.

DC: I don't support the concept of a federal hate-crimes law, so I have no use for an expansion. The idea of an amendment to the '68 law is only to test whether the Bush administration is using rationales about federalism and constitutionality as a pre-text for anti-gay bigotry or pandering to others' anti-gay bigotry. Such an amendment would do nothing to stop hate crimes, but it's also unlikely this bill would.

On the administration's prosecution for violation of federal criminal laws dealing with things like drugs and child porn, it is one thing to enforce existing law. That's the executive's job (though I suppose you could argue it does so with excessive zeal). It's another thing to support an expansion of federal criminal law over areas of traditional state authority despite the absence of evidence that the states can't handle these matters themselves.

I agree with Dale's suggestion--amend the 1968 federal hate crimes law and add gays to the list.

I also agree with Steve (I agreed with Kovarsky in an another thread today, so there go my conservative bona fides)that this bill is "feel good legislation"--bad policy (in this case regulating activity best left to the states to regulate) whose true purpose is to pander to special interests.

The bill violates the Supreme Court's decision in United States v. Morrison, 529 U.S. 598 (2000), which made clear that the federal government lacks the authority under the Commerce Clause and the Fourteenth Amendment to ban hate crimes, whose punishment is thus left to the States (unless the hate crime occurs in a commercial context, in which case it can be banned by federal law under the Commerce Clause).

(The Morrison district recognized that there was one type of private hate crime the federal government could prohibit -- race-based hate crimes, which the feds have special authority to prohibit under Section 2 of the Thirteenth Amendment (protecting the freed slaves) -- even if it occurred in a noncommercial context, but held that that does not extend beyond race to gender, sexual orientation, etc.).

is there any evidence that these laws deter anyone, or add much to punishment already faced? as I recall, the J Byrd killers got death and life imprisonment. not sure an extra 5 for being bigots would have made much difference.

I think these laws are a bad idea for a number of reasons, but their seeming uselessness is the first.

For one thing, many not-nice people (the kind of people who tend to beat people up for fun) tend to use homophobic terms of abuse to describe people who they have no reason to think are homosexual.

I had a friend who went into a bar and tried to pick up a girl who was there with another man. The man and his buddy followed my friend out of the bar and beat him very badly in full view of a large crowd repeatedly calling my friend a "faggot." It caused a huge scandal and was widely reported as a "hate crime." Once it became clear that my friend was not homosexual, interest in the scandal waned.

Historically, we had a real problem with political violence directed against black Americans, so I can see punishing racially motivated violence more harshly. I know that gays *feel* discriminated against, and I know that several gays have actually been victims of crimes. What I don't know is that this is a *systematic* problem. Strikes me that this is about affirming the general principal that sexual orientation is not a matter of morality, but a type of "diversity" like race, gender, ethnic orgin or religion, rather than being about the need to "fix" a specific problem. If there is data showing that this is a widespread problem, I'd like to know of it.

to test: I don't see narrowness in federal criminal laws to be a "problem" that needs to be fixed. We have state governments whihc employ most of the police, all of them make battery, murder and the like a crime, and as far as I know all of them tend to prosecute it even when gays are the victims. The fact that something is bad, and that the federal government *could* criminalize it, doesn't mean that the federal government *should* criminalize it.

In answer to your question, most drug offenses are prosecuted in state, not federal, court even though the criminals have violated both state and federal laws. This reflects the fact that they are caught by state law enforcement (including local police), who are much more numerous than federal law enforcement. I don't think anybody attributes it to a pro-drug bias in the Bush Administration.

Steve: Hear, hear. I'm a Republican but I'm appalled by the tendency of some Repubs to want to make everything a crime (and presume guilt), then rely on prosecutorial discretion to make the system work.

Bush is vetoing it for all of the wrong reasons (because not vetoing something connected to gay rights unmotivates the conservative/religious base),

and not for the right ones (federalism, not necessary, do we really want to say motive should have such a large factor in determining the type of crime, please don't repeat the arguments from the previous thread they were done to death there). Sigh what else can be expected from this president.

Many religious groups have criticized this bill for supposedly creating "thought crimes."

The Bush Administration has rightly objected to the bill on quite different, constitutional grounds, specifically federalism and the limits on Congressional power.

Under our Constitution, the powers of the federal government were intended to be limited and few in number. States, not the federal government, were supposed to be primarily responsible for defining and preventing crimes.

In recent years, however, the Supreme Court has often abdicated its duty to enforce limits on federal power. It has increasingly allowed the federal government to regulate, and even criminalize, all sorts of activity. Relying on Congress's power to regulate interstate commerce, the court has upheld federal regulation as long as the regulated activity has a remote or conjectural connection to interstate commerce.

For example, it allowed Congress to ban possession of medical marijuana in the 2003 Gonzales v. Raich case, claiming that not just the sale of marijuana but also mere possession had to be banned to dry up interstate markets in marijuana.

The Administration is on solid ground in objecting to the legislation on federalism grounds. In United States v. Morrison, 529 U.S. 598 (2000), the Supreme Court struck down another hate-crimes law -- the Violence Against Women Act provision allowing federal lawsuits for gender-based hate crimes -- on federalism grounds.

In that case, the courts recognized that hate crimes are not closely enough related to interstate commerce to be subject to federal jurisdiction under the Constitution's Commerce Clause.

Nor can they be prohibited under the Fourteenth Amendment, which prohibits states from denying the equal-protection of the laws, since the Fourteenth Amendment only applies to governmental discrimination, not private hate-crimes. Thus, banning gender-based hate crimes is a decision to be made by states, not the federal government.

What is true for gender-based hate crimes is true for sexual-orientation based hate crimes as well. Under the Morrison decision, Congress lacks the general power to ban hate crimes based on sexual orientation.

(Congress does have the general power to ban one, specific kind of hate crime: race-based hate crimes. The courts have held that under the Thirteenth Amendment, designed to protect the freed slaves, even private racial discrimination can be banned, under Supreme Court decisions like Jones v. Alfred H. Mayer Co. (1968). But as the Morrison district court observed in Brzonkala v. Virginia Polytechnic Institute, that authority does not extend beyond racial discrimination to other kinds of discrimination).

Although the Administration is right to oppose the bill, its federalism argument would be stronger if it had not itself gotten the Supreme Court to weaken the limits on federal power in the Gonzales v. Raich case. In that case, the Administration, in its blinkered zeal to prevent states from allowing medical use of marijuana, got the Supreme Court to allow the federal government to ban even private possession of medical marijuana.

While the hate-crimes bill has serious constitutional problems, gay and lesbian commentators like Andrew Sullivan are right to point out the irony of the objections raised by some lobbying groups on the Religious Right.

Those groups decry this hate-crimes bill for trampling on federalism and creating "thought crimes," but they never had a problem with religion-based hate-crimes laws, which raise many of the same issues. And they have seldom let federalism concerns stand in the way of demanding legislation they favor, such as the law that federalizes prosecutions of church arson.

Dale, much as I respect your opinions and even agree with some of your qualms about this bill, this veto-threat (and the almost-certain veto) is pure pandering to anti-gay bigotry no matter what pretext the Administration cites.

Your test for assessing the motives of the Administration (pass a different bill) is just not reasonable. Whatever any of us thinks of it, this is the bill that has emerged after years of effort at wooing various members of Congress, and it is the one promoted by the advocacy groups. Because no stripped-down bill is likely to be forthcoming (in part because most people realize this President would just veto a stripped-down bill too), you are asking people to hold their criticism until something that isn't going to happen happens. With respect, your test would effectively give the Administration too much immunity from criticism and too much benefit of the doubt.

We can consider other factors here. First, it would be a very simple matter for the President to state specifically what he would sign, so that Congress could enact it. Where is his counter-proposal to, as you helpfully suggest, simply add "sexual orientation" to existing law? Instead of your test--make Congress pass a new bill--let the test focus on what the Administration proposes as an alternative. The President is the one wielding the veto pen, after all. Is the sound of cricket-chirping drowning out the White House's articulation of its substitute bill? The President certainly wasn't shy in making clear what he would and wouldn't sign when it came to his other two vetos: stem-cell research and Iraq-War funding.

Second, we can look at what the President has said. Indeed, look no further than the insulting first sentence of today's statement: "The Administration favors strong criminal penalties for violent crime, including crime based on personal characteristics, such as race, color, religion, or national origin." Well, how nice for him; he opposes racism and anti-Semitism. He's really out on a limb there! Everyone knows this bill is mainly about sexual orientation, which is mysteriously missing from his list of "personal characteristics," notwithstanding that the incidence of sexual orientation-based hate crimes exceeds the incidence of those based on national origin, which is included on his list. If he wanted to signal that sexual orientation was not the real issue with this bill, it would be included in that list in the first sentence. It isn't.

Apparently, this President isn't allowed even to say he favors strong criminal penalties for violent crimes based on the victim's sexual orientation. That is an extraordinary omission that ought to be troubling. You surely do not take seriously the later hint that he might feel differently if only "age" and "military status" were wedged in between "sexual orientation" and "gender identity," do you? Please. Indeed, as long as counterfactuals are on the table, I bet he'd veto that more-inclusive bill because it would still have sexual orientation in it but would sign this very same, federalism-encroaching bill if only sexual orientation and gender identity were removed.

Let's also consider contextual evidence, like timing and comparative evidence. In connection with which other bills has the President been so early and absolute in issuing a veto threat? Does he generally do that with mere federalism concerns? Mere spending issues? Since when is the budget his actual concern? And where's the insincere, boilerplate "invitation" to work with Congress to formulate a bipartisan compromise he can sign here?

No, I don't need to wait for Congress to pass a hypothetical new bill to draw a conclusion here. The religious right does not want this bill because the religious right is run by anti-gay bigots. Even their excuses about suppression of speech are pretextual, given that it is a bill targeting violent crime. And this President does not feel one iota of reluctance about catering to that bigotry on this and virtually every other issue, including empowering a flunky to covertly eviscerate Clinton's executive order on nondiscrimination in federal employment.

I grant you that Republicans are too often maligned by Democratic-supporting gay leaders. But you lose me if you try to cast this particular incident as a case of a Republican leader being unfairly misunderstood by partisan-Democrat gay leaders. Today's White House statement was utter pandering to the basest elements of the base. However one feels about hate crimes legislation--and I am ambivalent myself--today's statement was shameful and ought to be strongly condemned, not parsed and rationalized. There is no silver lining in it.

DC: Hi Stephen: Good post parsing the statement from the Executive Office. However, the administration does earn credit for leaving out by far the most common complaint about these laws from anti-gay groups: that they criminalize expressions of moral disapproval of homosexuality.

I agree that there’s good reason to question the real motives behind a veto. That’s not really my point here, though, which is only to say there are good reasons to oppose the law even if anti-gay groups support a veto and even if Bush does so for unstated and malign reasons.

I agree that Bush should suggest a bill he would sign, if he would sign any. He may yet do so if we get to the point of an actual veto (remember, the Senate hasn’t even passed it yet). We’ll see. But if members of Congress and gay advocacy groups are going to attack him for bad motives and bad motives alone, I say call his bluff and pass an amendment. That won’t likely happen, I agree, but not because a Bush veto is certain. Congress passes laws all the time when it knows a presidential veto is certain (see, e.g., Iraq funding). It won’t happen because the groups supporting it are doing so because it gives them more federal money (law enforcement) or dramatically expands federal jurisdiction in a way they have long sought (civil rights groups). The gay part of the bill gets the most publicity, but it’s substantively probably the least important part.

P.S. To Dale and those who are agonizing over Morrison, we may soon get a test without that problem. The Employment Non-Discriminatoin Act, which would prohibit employment discrimination based on sexual orientation, would clearly be constitutional. Nor would it be feel-good, symbolic legislation. And this President will veto it too, for exactly the same reason: He cannot refrain from pandering to anti-gay bigots in his base.

I also agree with Steve (I agreed with Kovarsky in an another thread today, so there go my conservative bona fides)that this bill is "feel good legislation"--bad policy (in this case regulating activity best left to the states to regulate) whose true purpose is to pander to special interests.

I sort-of agree with you. I think the legislation is silly, but because I think "hate crime" is an absurd category of criminal punishment, not because I think the states are in a superior position to implement it.

Also, if I could speculate about another thing - I'd be curious, if anybody knows, whether this legislation is in some way a response to Booker - i.e., has the Apprendi project changed the legal landscape in some way that made this legislation more of a priority?

I also agree with basically everything Stephen says. I think it's unfortunate that many well-intentioned conservatives find themselves party to a reluctant coalition with bigots. The President's veto might be worded to avoid this perception, but you've got to be either naive or delusional to believe that the constituencies to which he is being responsive are not bigoted.

The proper enforcement of this law would lead to more blacks being sent to prison for longer terms for preying on whites. I'm sure that is not the intent of the drafters.

This has been a relatively common consequence of the existing hate crimes law. Hate crimes of all sorts are banned and enforced, including those against Christians, and whites, etc.

I'm in the group that thinks this is just symbolic action without value and with some risk, but the paranoid "special rights" arguments are pretty weak. The bill would prevent hate crimes against heterosexuals, too

I must confess it's a bit of a pet peeve of mine, people refering to constitutionally mandated divisions of power as "traditional". As though the only reason for respecting them was tradition, rather than, say, that they're dictated by the highest law of the land.

frankcross, you're absolutely right about the reflexive applicability of these laws and, I'd say, the dishonesty of today's statement in trotting out the "special rights" rherotic of the religious right.

The statement was also utterly disingenuous in claiming that prosecutors in nearly every county in the nation can use state hate crimes laws. Of course, half the hate crimes laws in the nation omit "sexual orientation," which is exactly the gap this bill was supposed to fill.

As for any racial disparate impact, if it results from discriminatory decisions of prosecutors to try defendants under hate crimes laws, that's unacceptable. But if it results from a greater incidence of antigay hate crimes committed by young men of a particular race, the solution to the "disparity" is for fewer young men of that race to engage in gay-bashing. Not even centuries of racist oppression gives one a license or excuse to bash gays.

I must confess it's a bit of a pet peeve of mine, people refering to constitutionally mandated divisions of power as "traditional". As though the only reason for respecting them was tradition, rather than, say, that they're dictated by the highest law of the land.

C'mon Brett, give 'em a break. They just mean the way that power has traditionally been interpreted. It's a linguistic shortcut, not an analytic one.

Laws like this only give added power to all the little Nifongs out there. If you seriously care about the rights of the individual vs. the State, then you should oppose statutes that multiply the number of regimes of prosecution, sentencing, and end-runs around double jeopardy protections. Federal resources will always be too limited to prosecute in all potentially applicable cases, so the decisions about who should be prosecuted and for what will always be subject to determination based on political expediency (or fanaticism).
This is bad for all of us who might someday be prosecuted -- i.e. all of us.

Stephen Clark hits the nail on the head. If Bush opposes hate crimes against gays but just thinks this to be a bad bill, or thinks that the federal government should stay out of this area altogether, fine. All he has to do is modify the veto statement to say that "The Administration favors strong criminal penalties for violent crime, including crime based on personal characteristics, such as race, color, religion, sexual orientation [my addition], or national origin."

He won't say that, because he's afraid of telling the truth to the bigots and homophobes that voted for him.

It's not shameful to veto this bill. It's shameful to veto this bill without making clear that hateful violence against gays and lesbians is just as wrong as hateful violence against blacks or Christians.

CheckEnclosed, your point may be fair, but the veto of this bill is the wrong place for you to make it. It sounds like the argument I once heard from a libertarian who opposed civil marriage: Practically, we're stuck with opposite-sex marriage, but on "principle" we should keep denying it to same-sex couples so it doesn't expand.

Applied to this veto, your basic tactic would be quasi-principled grandfathering. But that would mean whatever federal prosecutors might otherwise do, they can't prosecute the third most common form of hate crime, but they can continue under existing law to choose to prosecute the first, second, and fourth most common forms. And there is no double jeopardy issue in the half the country where state hate crime laws similarly exclude sexual orientation. Justifying that result with an appeal to even-handedness isn't very persuasive.

There is nothing improper about opposition to this legislation by religious conservatives. Religious conservatives have no objection to laws that prohibit violence against all people including people who engage in homosexual acts. The question is whether there should be a higher penalty created by the law for situations where dislike of homosexuality is the motive for the crime. The only reason why one would make violence against homosexuality a greater offense is if one believes that there is something special about homosexuality that justifies a special penalty. If one assumes that homosexuality is immoral, then it does not make sense to give a person a higher penalty for a crime just because it was motivated by dislike of homosexuality.

In addition, this type of hate crime legislation sets a really bad precedent. The legislation is in essence punishing a person for their dislike of homosexuals. It is not punishing them for engaging in the murderous act since there are other laws that already prevent that. If prohibiting an anti-homosexual state of mind is constitutionally permissible, there is no reason to limit the prohibition to the context of violence. Why not also prohibit offensive hate speech too? Or why not just criminalize the belief that homosexuality is wrong? The logic that justifies the anti-hate crime law just as equally justifies other law repressing those who believe that homosexuality is wrong.

If you do not believe that this is realistic, it is already happening in the United States. The Ninth Circuit Court of Appeals recently ruled (reversed on mootness grounds) that it was acceptable to prohibit a student from wearing a shirt to school that said "homosexuality is shameful." A Federal judge in Chicago, following the Ninth Circuit precedent, just ruled that it was constitutional to prohibit a student from wearing a shirt to school that said "Be happy, not gay." In addition, a Federal judge in Massachusetts just recently ruled that parents have no right to remove their 5 or 6 year old kids from classes that directly brainwash the kids into believing that there is nothing wrong with homosexuality. The court believed that the law was justified, in part, because it promoted a socially good goal of tolerance toward gay people.

To test this proposition, and to put gays on a par with other groups often targeted for hate crimes, Congress could simply amend the 1968 federal hate-crimes law to add protection for sexual orientation. Then we'll see what the President does.

I don't think that this would be a valid test. Suppose you oppose hate crime protections for any group. Is bigotry the only explanation for opposing the expansion of hate crime protections to yet, another, group? If given the chance, an opponent of hate crimes legislation might prefer repealing the protection for all groups. Since that option is not on the table, vetoing an expansion of the law to include gays would be consistent with opposition to the policy just as it would be consistent with anti-gay bias. Therefore, the test would not prove Bush's bias one way or another.

Stupid as all that is, it's still better than the justification used in 1937 to extend federal authority over a farmer's wheat grown for use and consumption on his own farm.

As for this law, while I don't believe Bush's stated rationales for the veto are his real ones, I'm at least glad that he DID trot out the rationales. Lip service to federalism, necessity and constitutionality is better than ignoring them yet again.

Historically, we had a real problem with political violence directed against black Americans, so I can see punishing racially motivated violence more harshly.

This systematic "political violence" directed against blacks no longer exists as it once did. During Jim Crow, whites uniquely married a state's so called "monopoly on violence" with the private violence of thugs (in cahoots), combined with a refusal to "equally protect" blacks under general laws against murder, assault and whatnot (perpetrated either by private or state actors). All of this was needed to make them feel physically afraid of whites. Now that Jim Crow, as an institution is dead, there is no problem with systemic white on black violence. Perhaps a case can be made that blacks are still economically oppressed by discrimination; but come on...do blacks in general really feel physically afraid of whites (unless they are cops)? I remember my majority white high school (graduated '91, from the socially liberal North East). Most masculine gays were in the closet and the few gays who couldn't hide it because they were effeminate did feel threatened and got beat up. The blacks who were a minority could "take care of themselves" so to speak and as such were respected and many were quite popular.

I know that gays *feel* discriminated against, and I know that several gays have actually been victims of crimes. What I don't know is that this is a *systematic* problem.

If you look at the hate crimes stats people are attacked disproportionately because of their sexual orientation or perceived sexual orientation. It is certainly as much of if not more so a current issue than race or any other "group" based acts of violence. Whatever the legal or constitutional differences between "sexual orientation" and other categories, in terms of sheer need, if we don't "need" hate crimes laws for sexual orientation, we don't need them for any category.

Stupid as all that is, it's still better than the justification used in 1937 to extend federal authority over a farmer's wheat grown for use and consumption on his own farm.

I don't know about that. At least the rationale for Wickard was that home grown grain was about 1/4 of all grain consumed in the U.S., and thus the farmer who refused to participate was affecting the national market for grain. True enough, but by the same reasoning, a Californian who instead of visiting a brothel in Nevada (let's be delicate here) takes care of the problem himself, is affecting interstate commerce. Thus, the federal government has jurisdiction to prohibit self-abuse!

As for this law, while I don't believe Bush's stated rationales for the veto are his real ones, I'm at least glad that he DID trot out the rationales. Lip service to federalism, necessity and constitutionality is better than ignoring them yet again.

Yup. And the fact is that "hate crime laws" are a way for liberals to avoid treating crimes like aggravated assault and attempted murder as serious matters. Where I live, it would not matter if the victim was a homosexual. You engage in an unprovoked attack someone in Idaho, and you will get a serious sentence for it. In liberal areas, like California, they don't take violent crime seriously, and as a result, there's a lot of screeching about the need to make "hate crimes" into something serious.

This bill would dramatically enlarge the import of a hate crime — turning it from a mere sentencing enhancement (in place since 1994) and federal schools grant target (in place since 2002) to a full-blown crime in and of itself (a newly-created 18 U.S.C. sec. 249).

But the bill adopts, unchanged, the 1994 definition of "hate crime" from the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-332, sec. 280003(a), 108 Stat. 1796 — originally used by Congress to create a sentencing enhancement for "hate crimes," including those based on "sexual orientation."

The view that this bill somehow amends the Act of April 11, 1968, 18 U.S.C. sec. 245, seems to be just spin. (Maybe from gay rights advocates who want to claim a victory for their constituency?) The bill never mentions sec. 245. It doesn't amend sec. 245; it leaves it unchanged. And sec. 245, which never mentions "hate crimes," is no more directed at "hate crimes" than any other criminal statute that includes an antidiscrimination element — e.g., secs. 243, 246, or 247.

Wrong, Trask, although kudos for your religilus right political correctness in referring to gays as "people who engage in homosexual acts." You lose a point, though, for forgetting to work in "lifestyle choice" and "unnatural."

A hate crime law does not punish opinions. It punishes the act of singling out another human being for, in this case, violent attack on the basis of a personal trait. The punishment is for choosing to go gay-hunting, black-hunting, or Jew-hunting (or straight-hunting, white-hunting, or Christian-hunting). And that's what makes it a different crime than random violence or crimes based on idiosyncratic interpersonal issues.

Why pick the particular traits to include in a hate crime law? Well, because race, religion, and sexual orientation are personal traits that seem especially to drive people to harm others. Animus based on other traits doesn't seem to motivate people quite as strongly. When race, religion, and sexual orientation are at issue, people may need a clearer societal message or stronger deterrent.

As I've said, I don't feel strongly one way or the other about whether these benefits outweigh the costs of enacting these hate crimes laws. But please spare us the hackneyed, right-wing talking points.

I appreciate that your opposition is, in actuality, completely ideological and non-principled, but the "hook" you are mentioning is absolutely unremarkable, and occcurs throughout federal criminal legislation. Maybe you have a problem with that legislation generally (I bet you do), but please don't act like there's something unique about this bill.

If you look at the hate crimes stats people are attacked disproportionately because of their sexual orientation or perceived sexual orientation.

Those are the reported crimes. I am always astonished how many of the hate crimes supposedly based on sexual orientation that get national coverage...turn out to be completely fabricated. Like this one. And this one.
And this one here in Boise. And this one. And this one. And this one.
And this list.

I don't find it implausible that there are a disproportionate number of homosexuals who are victims of hate crimes. But as I pointed out here, the number of reported hate crimes based on sexual orientation in 2004 suggest that homosexuals aren't all that disproportionately victims of hate crimes--and that's assuming that all the reported crimes really took place.

This bill would dramatically enlarge the import of a hate crime — turning it from a mere sentencing enhancement (in place since 1994) and federal schools grant target (in place since 2002) to a full-blown crime in and of itself (a newly-created 18 U.S.C. sec. 249).

This is the point I made before about Booker - it's a common enhancement that mag no longer be sufficient to support an upward adjustment or departure after the most recent round of the Apprendi cases.

I appreciate that your opposition is, in actuality, completely ideological and non-principled, but the "hook" you are mentioning is absolutely unremarkable, and occcurs throughout federal criminal legislation. Maybe you have a problem with that legislation generally (I bet you do), but please don't act like there's something unique about this bill.

I had a problem with the Gun-Free Safe School Zones Act struck down in U.S. v. Lopez (1995) using the same absurd hook. And guess what? Lopez was a seriously bad guy, and because the feds decided to pursue the case, not state authorities, they blew it! Lopez walked on a case that involving bringing a gun to school for use in a murder.

I have a problem with the Wickard decision that ruled that growing and consuming grain on your own farm was "interstate commerce."

That's just not my point. My point is that I have no idea why you are singling this legislation out for a jurisdictional hook that recurs throughout the criminal code. I understand perfectly well that you object to the logic, but why single out this legislation?

This is the point I made before about Booker - it's a common enhancement that mag no longer be sufficient to support an upward adjustment or departure after the most recent round of the Apprendi cases.

Kovarsky,

The enhancement is only available when "the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person." http://www.ussc.gov/2006guid/3a1_1.html

Since the factor must be found by the finder of fact beyond a reasonable doubt, is it really imperiled by the Apprendi cases?

(Also, apologies, the Violent Crime Control and Law Enforcement Act of 1994 is Pub. L. No. 103-322, not 332.)

That's just not my point. My point is that I have no idea why you are singling this legislation out for a jurisdictional hook that recurs throughout the criminal code. I understand perfectly well that you object to the logic, but why single out this legislation?

Because that's what this blog posting was about! That's why! And I have criticized similar impossible to justify jurisdictional hooks before, such as the attempts to pass federal laws banning partial-birth abortion. Those laws belong at the state level, not the federal level, unless they are on federal jurisdictions (military bases, territories).

Earlier versions of this legislation would have amended section 245. At some point it was rewritten, possibly after Morrison was decided. Your substantive point is a fair one, but the "spin" rhetoric is not.

Although you are making a more technical point, remember also that this legislation would have the functional effect of providing hate crimes protection for sexual orientation in the half of the country where such protection does not exist under state hate crimes laws. You might cut people a little slack since the overall result is that the legislation would partly fill a sexual orientation gap in the overall American criminal justice system (state + federal). And to my knowledge, it has been gay-rights advocates who have been its chief promoters, no doubt because state laws generally cover the other traits.

If you would prefer a federal law that applied only if no parallel state law were available, I would see no objection in that. But President Bush would, in my view, as long as the words sexual orientation were in it.

I think it seems clear based on Scalia's majority opinion in RAV v. St. Paul that imposing distinct criminal penalties for hateful motivations toward particular categories like sexual orientation is viewpoint discrimination.

In the predawn hours of June 21, 1990, petitioner and several other teenagers allegedly assembled a crudely made cross by taping together broken chair legs. They then allegedly burned the cross inside the fenced yard of a black family that lived across the street from the house where petitioner was staying. Although this conduct could have been punished under any of a number of laws, [n.1] one of the two provisions under which respondent city of St. Paul chose to charge petitioner (then a juvenile) was the St. Paul Bias Motivated Crime Ordinance, St. Paul, Minn. Legis. Code § 292.02 (1990), which provides:

"Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in otherson the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor."
. . .
Assuming, arguendo, that all of the expression reached by the ordinance is proscribable under the "fighting words" doctrine, we nonetheless conclude that the ordinance is facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses. [n.3]

. . .
Applying these principles to the St. Paul ordinance, we conclude that, even as narrowly construed by the Minnesota Supreme Court, the ordinance is facially unconstitutional. Although the phrase in the ordinance, "arouses anger, alarm or resentment in others," has been limited by the Minnesota Supreme Court's construction to reach only those symbols or displays that amount to "fighting words," the remaining, unmodified terms make clear that the ordinance applies only to "fighting words" that insult, or provoke violence, "on the basis of race, color, creed, religion or gender." Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use "fighting words" in connection with other ideas--to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality--are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects. See Simon &Schuster, 502 U. S., at ___ (slip op., at 8-9); Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 229-230 (1987).

In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination. Displays containing some words--odious racial epithets, for example--would be prohibited to proponents of all views. But "fighting words" that do not themselves invoke race, color, creed, religion, or gender--aspersions upon a person's mother, for example--would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc. tolerance and equality, but could not be used by that speaker's opponents. One could hold up a sign saying, for example, that all "anti Catholic bigots" are misbegotten; but not that all "papists" are, for that would insult and provoke violence "on the basis of religion." St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules.

Numbers aren't my game so perhaps we can get Jim Lindgren or someone like that to comment. I looked at Clayton's analysis of the 2004 hate crimes stats and I found in the primary sources:

In addition, 16.7 percent of hate crime victims were targets of a religious bias; 15.6 percent, a sexual-orientation bias.

Virtually all of these crimes were committed against homosexuals or bisexuals. If gays as, as Clayton thinks, no more than 3% of the population, this suggests they are, as group, disproportionately likely to be victimized by hate crimes. Granted, not that many hate crimes, relatively speaking seem to be reported at all, but for the ones that are, homosexuals and bisexuals are disproportionately victimized.

Let's hypothesize somebody in jail for assault and battery. A cellmate, in for a month awaiting trial, wants a Double Cheese Whopper how badly? Enough to testify the first guy boasted of beating up a fag?

Trask, in Wisconsin v. Mitchell, 508 U.S. 476 (1993), the Court unanimously upheld a state hate crimes law and, correctly, rejected your R.A.V. theory. It is no more viewpoint discrimination to prohibit people from violently attacking others on the basis of race, religion, or sexual orientation than it is viewpoint discrimination to prohibit people from firing employees on the basis of race, religion, or sexual orientation. And you'll find that in R.A.V., Justice Scalia specifically observed that employment discrimination laws are not unconstitutional.

More to the point, even if the defendant claimed that his violent attack on a gay man, African American, or Jew was symbolic speech designed to make a point that he dislikes those people, the hate crimes law is not regulating the speech element of the violent attack, it is regulating the conduct element of the violent attack: the violent attack. It makes no difference whether the defendant is slamming a baseball bat against the victim's head to say he loves gay people, to say he hates gay people, or to say nothing at all: all three are equally covered, so long as he selected the victim because of his sexual orientation. The fact that few defendants act out of love or to send a message of love doesn't make their hypothetical conduct any less covered by the statutes. The laws target the conduct, not any message. Content-neutral.

Thanks for your thoughtful response and detail about earlier versions of the legislation. I regret if my "spin" comment appeared to be making a substantive comment on the legislation; in reality, I honestly have no serious opinion on its merits, and I don't have any enmity towards the activists who pushed for this bill, other than my disagreement with their characterization about "enlarging" an existing hate crimes designation to include sexual orientation.

Even if the bill had amended sec. 245, I still don't agree that sec. 245 should be characterized as a law against "hate crimes." It is a civil rights statute that proscribes invidious discrimination, sure. It's the "criminal counterpart to Title II" of the Civil Rights Act of 1964; see United States v. Allen, 341 F.3d 870, 882 (9th Cir. 2003).

But there are lots of such statutes -- that cannot be what we mean by "hate crimes" legislation, or we would be including almost all civil rights legislation under the umbrella of "hate crimes."

Nobody ever called the laws against workplace discrimination "hate crimes" laws, or the fair housing laws, or any other federal civil rights law. Sec. 245 is a garden-variety civil rights statute just like all those other examples.

I agree that there is a real argument here, but it is about whether "sexual orientation" should be a protected category under all the various civil rights laws -- for workplace discrimination (where it's not currently a protected category) or housing discrimination (again, no) or intimidation by force or threat of force (no), etc. Today's bill wouldn't add "sexual orientation" to any of those civil rights laws.

The question about whether we should enact "hate crimes" legislation is totally separate. That's also an argument worth having, but let's not pretend we already have one that just needs to be strengthened to include gays.

I went through all the Federal Supplement and Federal Reporter in Lexis, and there is not a single reported decision, ever, of a court calling 18 U.S.C. sec. 245 a "hate crimes" statute. (There are some kooky pro se litigants who do, but that's about it.)

So I think my theory, that this is just a neologism that helped today's activists frame their proposed legislation as more of an incremental change than it really is, seems plausible, although in truth I don't know. I can't find any real authorities referring to sec. 245 as a hate crimes law; can anybody find such a reference?

So you think hate crime has an expressive component? What is that expression, exactly?

Kovarsky,
It would in some crimes like vandalism and cross-burning. "I hate your kind" is an expressive sentiment. Come to think of it, and orchestrated campaign of violence targeting a minority group could easily be seen as 'trying to send a signal to them to get out of our neighborhood.' Just because it is an ugly and repugnant statement of little social value... doesn't change the fact that it has an expressive component.

Kovarsky,
an additional point. Take the violent political protests of anarchist groups during G7, WTO, and similar conferences. The anarchists burn buildings and throw bottles at police specifically to send a political message. Does the political message disappear when the anarchists decide to firebomb the McDonald's because it's owned by Americans, or the hillel office because of the jooos?

I am baffled why some of you seem so convinced that it is morally obvious that punching you in the face because you "look gay" is so much worse than punching you in the face because you look like a "rich snob." Or why it is so vital that the law enshrine your opinion, as opposed to say, mine. Or that the fact that I disagree with you about this matter is prima facie evidence that I'm a closet racist/gay-basher.

Some will no doubt that allege that comity on matters of race or sexual preference are essential to our "diverse" society. But, aren't class distinctions also? Couldn't "the rich" be seen as a hated group? When May Day anarchists smash McDonald's windows, aren't they attacking all "capitalists"? Isn't capitalism and capital essential to our prosperity and serenity? Better protect them too. In the last election cycle, when Democrats slashed the tires of Republican vans, didn't they symbolically slash all "Republicans"? Isn't political diversity and the two party system essential to our way of life and our very social structure? Probably best to protect "Republicans" too.

No, I think in most cases it's probably nothing more than internal rage directed at people in the victim class. Likewise, if I rip up my draft card in a rage because I just got called up, that's not speech either. And if I fire a female worker because I have stereotyped ideas about the abilities of women, I'm not speaking to anyone. I doubt most of the hate-crime incidents would meet the Spence test for symbolic speech in the first place because I doubt they typically involve an intent to speak in any cognizable sense.

I pause only because of incidents like tying Matthew Shepard to a fence, which had all sorts of symbolism, though probably not intended by the defendants. Publicly lynching someone or dragging someone behind a truck might conceivably be meant, in part, to send a message to other members of the victim's group. Lastly, of course, might those acts sometimes be meant to say something demeaning to the victim himself, like "you should have stayed in your place"? Does that count as speech for First Amendment purposes? Still, it's the violent conduct that is the target of the law, and even if there is a speech element, the laws ought readily to satisfy the O'Brien test. It's physical violence!

What I don't accept is the argument that the very act of selecting the victim because of race, religion, or sexual orientation must necessarily be expressive because it is motivated by animus (or stereotype). That view takes the fact that no one actually selects victims to express pro-gay, etc. views and tries to turn that into an argument that the statute therefore must be targeting only people with anti-gay views. But the statute applies regardless of pro-gay or anti-gay views. The argument is analogous to trying to turn a disparate impact into intentional discrimination claim in an equal protection case, an analogy that Scalia specifically drew in a footnote in Employment Division v. Smith.

The key distinction is prohibiting an action vs. prohibiting a motive. Standard murder laws prohibit a person from taking the life of another. Hate crime laws prohibit a person from having a specific motivation. A motive is "something that causes a person to act in a certain way." Hate crime laws punish people not because they kill a person, they punish people because because of the reason that led them to murder. It punishes people because they believe certain races are inferior, certain religions are inferior, certain genders are inferior, etc. You cannot punish people because they had a specific viewpoint (i.e. a certain group is inferior) that led them to commit a violent act. Would it be constitutional to make it a hate crime to kill a person because they are a Democrat? I would say no because you cannot punish people for their disagreement with Democrats. There is no distinction between this and the more common hate crime classifications.

First, I'd question why you assume a hate crime law must represent a moral judgment about different traits. That assumes moral condemnation is the sole purpose of the criminal law. As I've said, the selection of traits makes more sense to me from a deterrence perspective. These seem to be the traits that cause people to lose control most often.

But there are issues of moral philosophy here I suppose. We could protect status as an ex-con child molester, since people seem to think they have the right to physically attack those people. But we don't include that in these statues. Why? There must be some element of deeming the victim not morally blameworthy for having the trait in question, maybe because it isn't a trait they choose. Is history of subordination based on the trait relevant? That might distinguish the rich guy, who is not in a materially disadvantaged position in any sense.

This also explains the religious right's vehemence over sexual orientation. They (a) won't even acknowledge it as a trait and (b) affirmatively want to perpetuate the subordination of which the hate crimes are just a part. In some sense, they see the victim as morally blameworthy, responsible for his own victimization because he shouldn't have "chosen" to be gay.

I am baffled why some of you seem so convinced that it is morally obvious that punching you in the face because you "look gay" is so much worse than punching you in the face because you look like a "rich snob." Or why it is so vital that the law enshrine your opinion, as opposed to say, mine. Or that the fact that I disagree with you about this matter is prima facie evidence that I'm a closet racist/gay-basher.

I am not clear who you are talking about. The two most vocal on this thread have been Stephen Clark, who has explained that he is ambivalent on the issue, and me, who would would never support a hate crime law.

But what I have a problem with is, as Stephen put much more eloquently than I, the the pretextual garbage that the administration puts out to sate its base.

Steven Clark said, "Why pick the particular traits to include in a hate crime law? Well, because race, religion, and sexual orientation are personal traits that seem especially to drive people to harm others."

Actually, a belief that the intended victim has some cash in his possession is most likely a much more prevalent motivator.

I read the Wisconsin v. Mitchell case. I was not aware of this case, and it is true based on this case that these types of laws would be constitutional.

I think this case was wrongly decided. I do not care if the decision of the Court was unanimous. The Court pointed to the fact that employment discrimination laws make the same types of distinctions. This is true, but I think that employment discrimination laws clearly are viewpoint discrimination and violate the right to free association. The question is when there is a compelling interest that overrides these concerns. As the Court made clear in the Boy Scouts case, some organizations have a constitutional right to be able to exclude people from employment based on these types of classifications. There is a potential distinction though between non-profit organizations and commercial organizations because the state may have some interest in ensuring that commercial employment decisions are made based on merit. A job is a person's means of survival, and there may be a strong state interest in the commercial context in ensuring that employment decisions are not made based on seemingly arbitrary grounds.

The Supreme Court also pointed to the fact that hate crimes have unique secondary effects and social costs for society. This is also a bad argument. To the extent that the harm to society is from the murder, that can obviously be punished. To the extent that it was based on the reason for the murder, that cannot be punished. This is proven by the case where the Supreme Court allowed the neo-Nazis to have a parade down the street of Jewish Holocaust survivors. The Supreme Court has made it clear that offensive speech cannot be prohibited merely because the viewpoint expressed will harm a community. Flag burning can also create risks of violence, emotional harm, and retaliation, but it is still protected by the constitution.

The Supreme Court also made the argument that it is common for motive to be taken into account in sentencing. However, this proves nothing. To the extent that those motives that are considered in sentencing are viewpoints, then considering them is also unconstitutional. The fact that there are possibly other similar free speech violations going on does not justify this one.

So basically, I think the reasoning in the Wisconsin v. Mitchell case is bad, and I am shocked that none of the justices had the principle to dissent. My guess is that the liberals supported the law because they like anti-discrimination type laws, and the conservatives supported the law because they like to be deferential to the state, especially in the context of criminal procedure.

In liberal areas, like California, they don't take violent crime seriously

Ever hear of "three strikes"? You can get a life sentence in this state for stealing a laptop computer.

There's a reason that it had to be passed by initiative--because the Democrats wouldn't make violent crimes serious punishment. And of course, your friends are working hard to get three strikes destroyed by judicial decision.

To get a life sentence for stealing a laptop requires two previous violent felonies. For the life of me I can't imagine any good reason why someone who has raped a 14 year old and then chopped her arms off with an ax should have ever gotten out of prison. But he did, and went to Florida, where he raped and murdered a prostitute. Richard Alan Davis is the reason that three strikes passed, and the long history of California judges making excuses for his repeated violent crimes such as rape, assault with a deadly weapon, kidnapping, to let him loose is part of why I consider liberalism evil. It is a philosophy that regards such monsters as the victims, and their victims as the monsters.

In liberal areas, like California, they don't take violent crime seriously

Ever hear of "three strikes"? You can get a life sentence in this state for stealing a laptop computer.

There's a reason that it had to be passed by initiative--because the Democrats wouldn't make violent crimes serious punishment.

Political Hackery rears its ugly head yet again. Clayton, you repeatedly make that claim and yet you never provide any proof even when I've asked you for some. There's a reason for it...IT'S NOT TRUE. I don't know why I expected differently...you've never let pesky facts get in the way of your bashing of all things liberal.

If you bother to go to the links, you'll see that average length of prison time served in CA is not the worst in the country (although it is below average). You'll see that WA, WY, NC, KY, FL, DE, WI, ND, iowa, IL among others are below or about the same as CA. Are all of these places bastions of liberals?

I can see how you got confused though. CA may not sentence violent offenders to particularly long sentences but on average inmates serve more of their jailtime than states which have long sentences. For example, even though 60 is less than 90, one third of 90 is less than one half of 60.

this thread has gotten silly. california is not soft on crime. what those of you who keep repeating that particular piece of innuendo, you are confusing the state of california with the us court of appeals for the ninth circuit.

Ever hear of "three strikes"? You can get a life sentence in this state for stealing a laptop computer. There's a reason that it had to be passed by initiative--because the Democrats wouldn't make violent crimes serious punishment. And of course, your friends are working hard to get three strikes destroyed by judicial decision.

I can't recall ever discussing 3 strikes with any friend of mine except once, and that friend supported it so I don't know who these hard working friends you refer to are. Any way, you said "they" don't take crime seriously in California, then you pointed out the electorate passed three strikes - seems like plenty of people take crime seriously in California or it wouldn't have passed.

HAHAHA...silly me. Of course 90/3 is not less than 60/2. they're equal! that's what I get for changing the numbers around to make my writting more understandable. replace 60 with 66 and it makes much more sense.

The motivation behind it is that a person is targeted for crime, usually assault and battery, because he or she belongs to a minority that is historically not considered popular. The purpose behind the attack is to put fear within the group.

So: A white guy sees a black man, and attacks him with a crow bar, and shouts racial insults. Hate crime? probably, because he is not stealing any money from the guy, and has no other criminal intent for that particular person, other than the fact that he is black. The result is that *other* blacks are fearful for walking around because other men like the perp may be out there, or the perp himself if not caught.

I have friends who are gay who were attacked by hetero men just because they were walking down a street. A man, or group of men, attacks the gay guy, screaming "faggot!" at him, and beats him up, and then run away. One friend was put in the hospital for several days. Another friend of mine was attacked and still suffers nightmares years later. Why were my friends targeted? Not for money. Not for revenge. Not for any reason, other than the fact that they are gay. These hetero men wanted to vent their anger at gay people, and they want gay people to disappear so that they don't have to see them walking the street.

So hate crime laws are intended to create higher penalties because the effect is higher -- gays or blacks, or whatever, are made to feel that they are targeted in a way that other people are not, and are made to be fearful for just doing normal things.

Now, I'm not sure whether hate crimes law is the best answer for this, but at least you know the rationale.

Ramza:> Bush is vetoing it for all of the wrong reasons (because not vetoing something connected to gay rights unmotivates the conservative/religious base), and not for the right ones (federalism, not necessary...

Excuse me, but do you have actual, you know, evidence for that statement? The only evidence I'm aware of that indicates why Bush did something is the man's own words. Unless you are going to pull a mind reader out of your back pocket, I suggest you have no basis whatsoever to conclude otherwise. He's cited "federalism" and "not necessary" as reasons.

This is information you'd already know if you payed more attention to what he actually says and less attention to what the voices in your head say he really means. You can reply that 'of course' he did it for the wrong reasons(as all right-thinking people would of course know!), but please cite some basis other than the voices.

Stephen Clark :> Dale, much as I respect your opinions and even agree with some of your qualms about this bill, this veto-threat (and the almost-certain veto) is pure pandering to anti-gay bigotry no matter what pretext the Administration cites.

Same answer. You should get together with Ramza and do something about those voices.

Dilan Esper:> He won't say that, because he's afraid of telling the truth to the bigots and homophobes that voted for him.

This is information you'd already know if you payed more attention to what he actually says and less attention to what the voices in your head say he really means. You can reply that 'of course' he did it for the wrong reasons(as all right-thinking people would of course know!), but please cite some basis other than the voices.

He's probably just listening to the voices in his head. Well, either that or observing the well-documented preferences of the political constituencies that Bush represents.

Randy R.> So: A white guy sees a black man, and attacks him with a crow bar, and shouts racial insults.

If you think that all, or even most hate crime cases are going to be like that, you are seriously deluded or purposefully disingenuous. More often, it'll be a plain ordinary crime where the perp is of the wrong race and throws in a couple of racial slurs to go along with the slurs about the victim's mother.

I swear, some of these people must think that a stealthy anti-gay KKK is going around burning gay bars while dressed in pink sheets. More likely, they heard from a friend of a friend who knew a person who might have been gay and might have been attacked for it.

Face it: you are more likely to have your car keyed for having a conservative bumper sticker, than for having a pro-gay one. So can political conservatives get in on this extra-special-protection deal? I thought not.

Have one of your black friends walk through a mostly-white trailer park, and one of your white friends walk through a mostly-black slum. See which one gets his face pushed in first. Equal enforcement of the law, anyone? Don't make me laugh.

This law is all about setting up a place for a gay version of the Jesse Jackson diversity shakedown, and not one thing other than that.

> He's probably just listening to the voices in his head. Well, either that or observing the well-documented preferences of the political constituencies that Bush represents.

Ah yes, the "all conservatives are bigots" argument. You see, that's why I come to the comment section at Volokh's. Its for the witty, original commentary without the smearing you find in those eeeevil winger sites.

Ah yes, the "all conservatives are bigots" argument. You see, that's why I come to the comment section at Volokh's. Its for the witty, original commentary without the smearing you find in those eeeevil winger sites.

I wasn't aware that I'd made that argument. But you seem really interested in caricaturing someone as a caricature, so go ahead, I suppose.

I'm not a big fan of the misrepresent-then-dumb-down-then-call-it-not-clever strategy, though. I mean, aren't you the commenter who just accused another commenter of "listening to the voices in his head," or something childish like that? I'm sorry that VC doesn't fit that platonic ideal of argumentation.

Kovarsky> I wasn't aware that I'd made that argument (all conservatives are bigots).

Its true, you didn't literally say that. One wonders though just what you DID mean "well-documented preferences of the political constituencies that Bush represents". Being purposefully vague has all the advantages of implication, and none of the drawbacks of actually making a statement you have to defend.

Of course, several others HAVE made that argument(do I really need to start cutting and pasting, or can you read the thread without help?), in in that environment your statement bends right in.

Randy, even among the subcategory of criminal offenses which constitute hate crimes,do you really think most crimes motivated by racial animus are trying to make a political statement and "put fear within the group," as opposed to just taking out one's views on the particular victim?

When the Birmingham church was bombed, that was designed to send a message to blacks generally. When some drunk racist sees a black guy and attacks him, do you think he cares about the "group"?

So, Clayton - who is the rapist with the axe? It doesn't seem to be Richard Allen Davis. (He is the reason for the three strikes law, but Polly Klaas was 12, and crimelibrary and Wikipedia don't mention him as committing any crimes against 14 year olds.) Your post as written is confusing to me, at least.

Ryan: "I swear, some of these people must think that a stealthy anti-gay KKK is going around burning gay bars while dressed in pink sheets. More likely, they heard from a friend of a friend who knew a person who might have been gay and might have been attacked for it. "

Well, actually, yes. In the early 1990s, for instance, it was fairly common to see small bands of white hetero teenagers from the suburbs of NY go down to the Village looking for gays to beat up. This was reported upon fairly often, and happened enough that many gays fled the Village to the safer Chelsea. And yes, it struck terror in the minds of many gays, as they were specifically targeted by these guys. This is about as clear an example of hate crimes as you can find. As a result of these attacks, a group was formed called Pink Pistols, which is gays who are in favor of carrying guns. The theory is that if more gay men carried guns, then they could defend themselves against such an attack, and once word would get around, these gangs of teenagers would go away. I suppose most people here would support that notion, right?

Additionally, I personally know of two friends (as I mentioned in my example) who were actually attacked, one by a baseball bat, by hetero guys who were just looking for gay men to beat up. And no, David, there was no evidence in either of these attacks that the attackers were drunk.

I also know that when I was in law school in Cleveland, we lived not far from the Italian neighborhood, and I made several friends there. It was common knowledge at the time (mid-80s) that if any black would ever show his face in that neighborhood for any reason at all, he would get his ass beaten up. That never actually happened, at least not to my knowledge, but on the other hand, I never saw any black people even driving through that neighborhood.

We can thank many of our churches and religious leaders, of course, at least partly for this situation. They happily teach that gays are an abomination, that God hates them and so on, and so to kill a gay is doing God's work. There was a Frontline doc a few years ago that interviewed men in prison who killed gay men, and about half of them expressed no remorse whatsoever, stating that gays deserved to die. And they freely admitted that they were taught that way by their religion, and acting in accordance thereof.

I remember my majority white high school (graduated '91, from the socially liberal North East). Most masculine gays were in the closet and the few gays who couldn't hide it because they were effeminate did feel threatened and got beat up. The blacks who were a minority could "take care of themselves" so to speak and as such were respected and many were quite popular.

I find this almost unbelieveable. I graduated from Santa Monica High in 1974. There were a few nasty comments made about one very, very effeminate young man, but beating up someone for being gay? Incomprehensible.

I can't recall ever discussing 3 strikes with any friend of mine except once, and that friend supported it so I don't know who these hard working friends you refer to are. Any way, you said "they" don't take crime seriously in California, then you pointed out the electorate passed three strikes - seems like plenty of people take crime seriously in California or it wouldn't have passed.

The voters aren't quite as deranged as the Democrats who sit in the legislature, who put up a major fight everytime an attempt was made to punish violent crime. The struggle we went through to try and get even a slight increase in the punishment for rape was incomprehensible to me. They fought three strikes as hard as they could, but it passed anyway, and liberals are still filing suits trying to destroy it.

If you bother to go to the links, you'll see that average length of prison time served in CA is not the worst in the country (although it is below average). You'll see that WA, WY, NC, KY, FL, DE, WI, ND, iowa, IL among others are below or about the same as CA. Are all of these places bastions of liberals?

WA, NC, DE, WI, IA, and IL are all liberal controlled.

Sorry, but as much as you might to believe otherwise, there are just too many examples of how little regard liberals have for human life. A co-worker sat on a San Francisco jury that convicted a guy of beating his wife to death with a baseball bat. The judge gave him probation, for fear the kids would end up in foster care.

In the early 1990s, there was a young man who went to a night game at Candlestick. On the way home, he had car trouble, and pulled into a closed gas station. He goes to the phone booth to call for help--and then sees two guys breaking into his car. He calls 911, and then he tells the operator that they are coming over and threatening him. She marks it low priority. The police get there an hour later. No one's there.

Two days later, the kid's father finds his son's body. He's been stomped to death. They match the soleprints up to two charming characters with long criminal histories. They are convicted of manslaughter, and are sentenced to 3 1/2 and 4 1/2 years, and of course are released before them.

Richard Alan Davis is another example of someone with a long history of violent crime who was never locked up for long because liberals believe that criminals are victims.

Well, actually, yes. In the early 1990s, for instance, it was fairly common to see small bands of white hetero teenagers from the suburbs of NY go down to the Village looking for gays to beat up. This was reported upon fairly often, and happened enough that many gays fled the Village to the safer Chelsea. And yes, it struck terror in the minds of many gays, as they were specifically targeted by these guys. This is about as clear an example of hate crimes as you can find. As a result of these attacks, a group was formed called Pink Pistols, which is gays who are in favor of carrying guns. The theory is that if more gay men carried guns, then they could defend themselves against such an attack, and once word would get around, these gangs of teenagers would go away. I suppose most people here would support that notion, right?

Absolutely. You will notice that gay-bashing seems to be a lot more common in liberal areas, such as New York City and the San Francisco Bay Area--and not so common in places like Boise. You suppose that there's a message there?

The details of Larry Singleton, who raped a 15 year old girl, and then chopped off her arms, then after his release from prison in California, murdered a prostitute in Florida, are here:

In 1978, he was convicted of raping Mary Vincent, a 15-year-old hitchhiker. Although he chopped off her arms with an ax and left her for dead on the side of a California road, she survived to testify against him.

We can thank many of our churches and religious leaders, of course, at least partly for this situation. They happily teach that gays are an abomination, that God hates them and so on, and so to kill a gay is doing God's work.

I have never attended a church that taught:

1. That homosexuality is "an abomination." A sin, but no worse than adultery, or drunkenness, or premarital sex.

2. That God hates homosexuals.

3. That "to kill a gay is doing God's work."

EVER. And the churches that I have attended are fundamentalist Protestant. (More fundamentalist than I am completely happy with, but definitely fundamentalist.)

Over the years, I have talked to two men who, if they were really, really drunk, might have engaged in an act of violence against a homosexual. What they had in common was not their religion (one was a guy I went to church with, the other had no religious beliefs at all that I could detect), but having been sexually abused as children. One was abused by a Scoutmaster, another by an Episcopal priest.

I also know that when I was in law school in Cleveland, we lived not far from the Italian neighborhood, and I made several friends there. It was common knowledge at the time (mid-80s) that if any black would ever show his face in that neighborhood for any reason at all, he would get his ass beaten up. That never actually happened, at least not to my knowledge, but on the other hand, I never saw any black people even driving through that neighborhood.

You keep giving these examples of liberal controlled areas that are filled with hatred. It makes me glad that I live somewhere where politeness and decency are still dominant values.

The Virginia Tech killer videoed statements that he 'hated rich kids'. So he went on a killing spree. Not a hate crime under the law, since neither 'rich' or 'kids' are protected categories. Ridiculous. They're just as dead as if they'd been killed for being black or gay.

In practice here in L. A., many of the hate crimes prosecuted are by Hispanic gangs targeting blacks in their neighborhoods.

"You will notice that gay-bashing seems to be a lot more common in liberal areas, such as New York City and the San Francisco Bay Area--and not so common in places like Boise. You suppose that there's a message there?"

Lest Randy R. miss this nugget, I'll attempt a retort.

Are you honestly missing the point that the only reason "gay-bashing" is more prevalent in liberal cities is because there are so many more gays there AND gays feel much more comfortable out of the closet in such places? Or are you just being disingenuous?

If a town has four Asian people and one gets attacked for being Asian, is it more tolerant of Asians than a city with 500,000 Asians where two get attacked? That's the logical extension of your point.

You got the basics right. Essentially, violent crimes against blacks (e.g., lynching) were not prosecuted or punished in the South. This was one way to give federal prosecutors the chance to enforce basic protection for blacks. I'll leave to individuals to consider how the proposed amendments might fit this pattern.

Clayton: "I have never attended a church that taught: 1. That homosexuality is "an abomination." 2. That God hates homosexuals. 3. That "to kill a gay is doing God's work."

Well, you should get out more often. Here on Capitol Hill in Washington, DC, you can actually hear there statements 1 and 2 because they have loudspeakers. One friend, who is gay, has to hear this garbage virtually every Sunday. Last summer, one pastor in a church was caught on tape saying these very things, and that made it into the press.

True, I haven't heard anyone say No.3. Nonetheless, the Frontline doc interviewed men who killed gay people because they thought gay people should be killed, and they explicitly stated that this what they learned in church.

From the Frontline doc, entitled "Assault on Gay America:" In Redding, California, Gary Matson and Scott Mowder were shot to death in their bed.
These are some of the worst examples of homophobia, the hatred or fear of gay people, and they are not isolated incidents. The FBI says bias crimes against gays doubled between 1990 and 1998.

Forensic psychologist Karen Franklin used court records to track down and interview people convicted of assaulting gays to find out why they did it.

KAREN FRANKLIN, Ph.D., Forensic Psychologist: Perpetrators feel that they are entitled, if not expected, to help to punish people who are stepping out of bounds for their male role or their female role. An example would be a young man that told me that- I asked him why he had committed an anti-gay crime, and he said, "Well, this man was wearing lipstick and high heels. What do you expect me to do?"

FORREST SAWYER: Another man told her about going to gay areas looking for people to beat up and rob.

KAREN FRANKLIN: I was asking him how did he target his victims. He started looking at some of the young men walking by, much like the young men who are passing now as we're filming, and certain individuals he would just say, "Look at that guy. Just look at him. I mean, he's weak. He's an easy target." He told me that "Men, if they don't know how to carry themselves, then they're asking for it."

Well, you should get out more often. Here on Capitol Hill in Washington, DC, you can actually hear there statements 1 and 2 because they have loudspeakers. One friend, who is gay, has to hear this garbage virtually every Sunday. Last summer, one pastor in a church was caught on tape saying these very things, and that made it into the press.

Hmmm. Washington DC--another place that the Democrats want to have the vote, because they know the population would never vote Republican. You keep making my point about liberalism.

The FBI says bias crimes against gays doubled between 1990 and 1998.

At the very time that homosexuals more than doubled their visibility and power. Very interesting.

"You will notice that gay-bashing seems to be a lot more common in liberal areas, such as New York City and the San Francisco Bay Area--and not so common in places like Boise. You suppose that there's a message there?"

Lest Randy R. miss this nugget, I'll attempt a retort.

Are you honestly missing the point that the only reason "gay-bashing" is more prevalent in liberal cities is because there are so many more gays there AND gays feel much more comfortable out of the closet in such places? Or are you just being disingenuous?

Is that really the reason? Or could it be because liberal controlled regions are less likely to allow homosexuals (and others) to be armed for self-defense? Or is it because liberal controlled regions don't punish violent crime very severely?

KAREN FRANKLIN, Ph.D., Forensic Psychologist: Perpetrators feel that they are entitled, if not expected, to help to punish people who are stepping out of bounds for their male role or their female role. An example would be a young man that told me that- I asked him why he had committed an anti-gay crime, and he said, "Well, this man was wearing lipstick and high heels. What do you expect me to do?"

FORREST SAWYER: Another man told her about going to gay areas looking for people to beat up and rob.

KAREN FRANKLIN: I was asking him how did he target his victims. He started looking at some of the young men walking by, much like the young men who are passing now as we're filming, and certain individuals he would just say, "Look at that guy. Just look at him. I mean, he's weak. He's an easy target." He told me that "Men, if they don't know how to carry themselves, then they're asking for it."

It sounds to me like this guy was picking on gays because he thought that they were weak, effeminate, and sissys, and thus wouldn't put up a fight when being robbed. That sounds like a motivation for this one person to rob homosexuals, not because he hated them, but because he thought that would be easy marks--the same reason that I got beat up a lot in junior high and high school--I was younger and smaller, and perceived as an easy victim. (They were right!)

I'm not quite sure where that stereotype of gay men comes from; for every effeminate gay guy in San Francisco there seems to be two hypermasculine gay men who work out a lot. And of course, there is Pink Pistols.

Sorry Clayton, but I didn't want to quote the whole transcript. Nor did I quote from the other Frontline doc about men who are serving life sentences for killing gay men. Many specifically stated that they were doing God's work, and that they were taught to hate gays from their churches.

Also, there is no indication that any of these men picked on gay men because they wanted to rob them. They did so just because they hated gay men. Go to the PBS website, select Frontline, and select Assault on Gay America if you want the full transcript.

Furthermore, the fact that DC is a liberal city has little to do with these black churches. There are plenty of black churches in conservative southern areas that preach the same hatred of gays. It's just that I happen to know first hand what goes on here.

Sorry Clayton, but I didn't want to quote the whole transcript. Nor did I quote from the other Frontline doc about men who are serving life sentences for killing gay men. Many specifically stated that they were doing God's work, and that they were taught to hate gays from their churches.

I would be very curious to know what churches. I've attended Salvation Army, Southern Baptist, Northern Baptist, Church of God, and a smattering of churches of other denominations, some of them way too narrow for me to be comfortable, and some way too liberal. I've never heard anything like this from the pulpit, or even from other members of the congregation.

The only church that I am aware of that preaches anything like this is Fred Phelps operation, which is so far outside the mainstream that he picketed a Focus on the Family conference some years ago, because the speakers were talking about their success as getting straight. Phelps thinks Focus on the Family is abhorrent because they promote this; Phelps thinks that homosexuals should be killed to make sure that they don't get a chance to go straight. Phelps is, shall we say, well out of the mainstream of even fundamentalist Christianity. (Of course, before he was disbarred, he won awards from the NAACP for what he did; he is a actually a bit of a liberal in most respects. The pictures of Al Gore with him are pretty amusing today.)

Can you provide links to published materials that say any of this stuff? Even Americans For Truth, while their language is stronger than I would feel comfortable with, doesn't say things like you are describing.

Sorry, I shouldn't have said there was NO indication that these particular men wanted to rob gay men. Obviously, for some, there was.

However, many of the most high profile killings of gay men, such as Billy Jack Gaither, and the couple from Redding, CA, shot in their bed, indicated no intent to rob, but rather just a desire to rid the world of gay men.

Incidently, when these men (and they are almost always men) kill another man because he is gay, there is literal overkill. They stab the men dozens and dozens of times, they beat the head until it's a just pulp, they shoot the bodies with dozens of bullets. In the case of Billy Jack Gaither, he was strangled, run over with the car several times, body hacked with a crow bar, then set on fire.

So if these guys are going to kill harder, they deserve higher sentences as a result of a hate crime.

It was common knowledge at the time (mid-80s) that if any black would ever show his face in that neighborhood for any reason at all, he would get his ass beaten up. That never actually happened, at least not to my knowledge, but on the other hand, I never saw any black people even driving through that neighborhood.

LOL. That reminds me of Eddie Murphy's Raw. The stereotype (accurate from my observations) that Murphy joked about was that "little" Italian tough guys who liked to blow smoke, especially after seeing Rocky.

I remember some white guys talking sh@t like that behind the backs of the blacks in my high school, which they rarely said to their faces.

The physical bullying of gays I remember occured mostly at the junior high school level, when kids were more immature (more likely to say tease a retarded person). In high school, gays did get beat up, though it was not a regular occurance.

The stereotypical gays, in high school, did their best to keep on the downlow and were subject to taunts, being stonewalled and threatened; it doesn't make one feel good when someone doesn't want to be in the same room with you just because of your orientation.

If gays dared assert themselves or made a pass at a straight guy; they would get beat up.

There is a reason "perceived" orientation is added to these laws. Virtually no one ever perceived me as being gay and I had no problem (I wore a mullet and Led Zeppelin shirts and was not out). A friend of mine, who as far as I know was not gay, was called out to a "fight" because he was mildly feminine and very artistic (he could take care of himself though).

I remember in 10th grade another guy, who was drop dead gorgeous in a "pretty boy" sense, (voted best looking), always had a girlfriend, was very athletic, and was somewhat feminine; he was never "out" and may not have been gay. (I suspect he was though). I remember another student taunting him, teasing him about shaving his legs (he biked). When the guy tried to explain, "I'm not gay, I shave my legs because I bike," the other student responded: "Yeah well I don't like to bike because I don't like pointy things up my ass." A fight was about to happen, but didn't.

This was more the typical shit that gays or those perceived at gay had to go through. They weren't beat up every day; but the threat always hung over their head.

As I noted, I graduated in '91; there were no "gay/straight" alliances in the schools back then. Now, I think most of them in my area have them, and little of that behavior today would be countenanced. I see that as progress.